Human Rights Tribunal of Ontario
B E T W E E N:
Bui Kim Anh Nguyen
Applicant
-and-
The Football Factory and Pat Pennman
Respondents
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Nguyen v. The Football Factory
Background
1This is an Application filed January 11, 2012, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination based on pregnancy, as well as reprisal, by the employer respondent.
2On March 2, 2012, the Tribunal issued a Notice of Intent to Defer the Application pending the outcome of a claim filed by the applicant under the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “ESA”). The claim alleges a breach of the reprisal provisions of the ESA. The applicant alleges that the employer respondent penalized her because she asked the employer to comply with the pregnancy leave provisions of the ESA, contrary to section 74 of the ESA.
3The Notice of Intent to Defer requested the parties respond with submissions with regard to the deferral issue by April 2, 2012.
4The respondents do not object to deferral. The applicant did not respond and the time for doing so has now passed.
Decision
5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.
6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779 and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.
7The Tribunal has deferred applications where there is an ongoing ESA proceeding dealing with the same subject matter, see: Rogers v. Holcim (Canada), 2011 HRTO 867. A review of the nature of the ESA claim filed by the applicant in this matter reveals it is similar in many ways to the subject matter of the Application.
8The remedies that are available to a person under the ESA and the Code are quite similar, especially in cases dealing with reprisal. Pursuant to section 104(1) of the [ESA](https://www.canlii.org/en/on/